The battle of ballots won in the 6eld is not to be lightly undone by a Court when it is approached by a defeated candidate, or by any other competent and interested person. This principle is so well woven in the fabric of evectional law that no citation of authority is needed to justify it. Despite this, the Court has to rise to the occasion when it finds that the purity of the election has been defiled by indulgence in corrupt practice, or when it is satisfied about the existence of any other ground mentioned in section 100 of the Representation of People Act, 1951, herein­after called the Act. Here also, the Court would be justified in reversing the verdict of the people on its being fully satisfied about the allegations made by the election petitioner. Any other attitude of the Court would destroy the democratic structure given to us by the Constitution, and nourished thereafter by the people who have shown their deep faith in the system by ex­pressing their wishes almost freely and fearlessly establishing thereby the efficacy of the elections in choosing only those as their representatives who according to the voters had been successful or had made sincere efforts in delivering goods to the hungry millions. 2. The petitioner in the present case having lost in the fettled of hosting, which took place on 17.2.83, has approached this Court not only for a declaration that the election of respondent No. 1(hereinafter, the respondent) was void, but for a further declaration that it was he who was duly elected to the Meghalaya Legislative Assembly from No. 49 Rajabala Consti­tuency. It may be pointed out here that the respondent had secured 3126 votes as against 2568 votes obtained by the petitio­ner who was the recipient of the next highest number of votes. The returned candidate had thus polled 558 votes more than the petitioner. There were four other candidates in the fray, but we are not concerned with them. The present was not the first encounter between the concerned persons, as the election petitioner and the respondent had faced each other in the elec­tion held in 1978, when the petitioner had got elected by a margin of 19 votes only. There were four other candidates in the fray, but we are not concerned with them. The present was not the first encounter between the concerned persons, as the election petitioner and the respondent had faced each other in the elec­tion held in 1978, when the petitioner had got elected by a margin of 19 votes only. Being a sitting M. L. A., the petitioner was naturally looking forward for his victory in the 1983 election also, but the same eluded him, and he says that this was due to indulgence incorrupt practices by the returned candidate, so also because he was allotted the symbol of 'Hand' meant for the Indian National Congress in violation of the provisions of the Act, or the rules or orders framed there under which mate­rially affected the result of the respondent. This apart, it is the contention of the petitioner that the respondent was dis­qualified to be a candidate as he was not a citizen of India. 2A. Keeping in view the averments made by the parties, this Court framed the following eight issues : - "1. (a). Whether the change of allotment of symbol from 'Boat1 to "Hand" to Respondent No. 1 Shri Khors-hedur Rahman Khan was in breach of paragraph 13 of the Election Symbols (Reservation and Allotment) Order, 1968 or was in breach of any order made under the Representation of the People Act, 1951, or the Rules, framed there under ? (b) Whether Respondent No. 1 made the declaration as required under Rule 10 (4) and (5) of the Conduct of Election Rules, 1961 ? If not, whether his nomination paper was liable to be rejected ? (c) Whether Respondent No. 1 made the requisite dec­larations in his nomination paper as required under para­graph 13 of the Election Symbol (Reservation and Allot­ment) Order, 1968 to the effect that he was set up by Congress (I) ? (d) Whether due notice, in writing that Respondent No. 1 was set up by Congress (I) were delivered to the Returning Officer of the constituency by 3 PM on the last date of withdrawal of the candidature and whether one of those said notices was duly signed by the Presi­dent, Secretary, or any other Office bearer of the party competent to set up Respondent No. 1 ? (e) Did the Secretary to the Election Commission of India, New Delhi send the Telex Message to the Deputy Commissioner, West Garo Hills, Tura and the Chief Elec­tion Officer of Meghalaya intimating that if an indepen­dent candidate was subsequently adopted by any recognised party he could be allotted the symbol reserved for that party on receipt of requests made by the said recognised party ? If the Telex Message was an order made by the Secretary was it a valid order of the Election Commi­ssion ? Whether the Telex Message conveyed an order or decision or direction of the Election Commission ? (f) Whether the Returning Officer could allot the reser­ved symbol "Hand'' to Respondent No.1 after the date of withdrawal of candidature was over, 1A. Whether any of the allegations contained in Cla­uses (a) to (f) of Issue No. 1 amounted to non compli­ance with the provisions of the Constitution, Represen­tation of the People Act, 1951 or of any Rules or Orders made under the Representation of the People Act and whether the result of the election in so far it concerned " the returned candidate'' was materially affected ? 2. Whether on 14.2.83 at about 6.30 PM, with the consent and knowledge of respondent No. 1 his supporters and workers named in Annexure-'F' obstructed the peti­tioner and his supporters and workers in front of the house of Ahmed Ali Bepari from 6.30 PM of 14.2.83 to 7 PM of 16..83, as alleged in para 25 (A) of the elec­tion petition and amplified in Annexure 'F' to the Elec­tion petition ? 3. If so, whether the acts amounted to corrupt prac­tice as contemplated U/s 123 of the Representation of the People Act, 1951 ? 4. (a). Whether the agents, workers and supporters of Respondent No. 1 (in para 25 (c) were agents, workers and supporters of Respondent No. 1 ? If so, did they) distribute cash, clothes etc to the voters of Sidakandi, Bowabaii. Fersha Kandi, Narasati and Magurmar as averred in para 25 (c) of the election petition ? (b) Whether Dr. Dilwar Hussain Khan was a Gazetted Government Officer and he canvassed on behalf of respondent No. 1 on 10.2.83 till 16.2.83 at the places mentioned in para of the petition ? (c) Whether respondent No.1 appointed Shri Safiur Rah­man Biswas as his counting agent ? (d) Whether Shri Safiur Rahman Biswas was a Govt. (b) Whether Dr. Dilwar Hussain Khan was a Gazetted Government Officer and he canvassed on behalf of respondent No. 1 on 10.2.83 till 16.2.83 at the places mentioned in para of the petition ? (c) Whether respondent No.1 appointed Shri Safiur Rah­man Biswas as his counting agent ? (d) Whether Shri Safiur Rahman Biswas was a Govt. L. P. Teacher at the relevant time ? 4A. If the allegations contained in Issue 4(a) to (d) are proved did they amount to corrupt practice as con­templated under section 123 of the Representation of the People Act ? 5. Did Respondent No. 1 or any of his agents, suppor­ters and workers canvassed till 17.2.83 morning as alleged in the election petition ? If so, whether the result of the election has been materially affected thereby ? 6. Did Respondent No. 1 display his party banner within the radius of 25 metres from Baldamgiri 12 and Rajabala Polling Station till 10 AM on 17.2.83 to mislead the voters and whether complaint for removal of the ba­nner was made by some candidate to the Presiding Officer on 17.2 83 at 10 A. M. ? If so what the Presiding Officer did ? Whether these amounted to corrupt practice u/s 12 of the Representation of the People Act ? 7. Whether Respondent No. 1 was disqualified to be a candidate for the election on the ground that he is not a citizen of India ? 8. Whether the election of the returned candidate is lia­ble to be set aside on any of the grounds ? What relief, if any, the parties are entitled to ? “ 3. It would be worthwhile, at this stage, itself to have a bird's eye view of the la\v relating to the burden of proof etc. which a Court has to bear in mind while adjudging any allegation relating to corrupt practice. The same was stated thus by me in the case of Bakin Pertin (E. P. 2/80) and reiterated in Rainbow Ezung (E. P. 4/80)' : "(1) Allegation of corrupt practice i.e. quasi-criminal in nature, or is substantially akin to criminal charges, because it not only vitiates the election but also disqualifies the person concerned from taking part in it for a considerable long time or may extinguish the man's public life. Rajik Ram vs. J.S. Chouhan ( AIR 1975 SC 667 ), D. Venkata Reddy vs. R. Sultan, ( AIR 1976 SC 1599 ), Amolak Chand vs. Bhagwandas, ( AIR 1977 SC 813 ). (2) So a grave and heavy onus rests on the accuser to establish it by clear cogent and reliable evidence beyond reasonable doubt. It cannot be established by a mere balance of probabilities. Razak Ram (supra), Nizamuddin vs. Narbada Prasad ( AIR 1975 SC 1909 ), M. Narayana Roa vs. G. Venkata Reddy ( AIR 1977 SC 208 ), K. M. Mani vs. P. J. Antony ( AIR 1979 SC 234 ), N. C. Zeliang vs. Aju Newmai ( AIR 1981 SC 8 ) and R. B. Singh vs. R. B. Jha ( AIR 1976 SC 2573 ).'' To this, I would add now, that the corrupt practice has to be proved to the hilt by the elec­tion petitioner the standard of proof of such an allegation being the same as a charge of fraud in a criminal case, as stated in Sultan Salahuddin vs. Mohd. Osmani, (1980) 3 SCC 281 . (3) Two corollaries follow from this : First, even strong suspicion would not be sufficient a In Nartndra vs. Manikrao AIR 1977 SC 2171 (para 11); and secondly, benefit of doubt belongs to the returned candidate, vide, Abdul Jiussain Mir vs. Shamsul Huda (1975) 4 SCC 533 (para 5). (4) There is, however, one difference between a criminal action and an election petition. The same is that the election trial does not give liberty to the other side to keep mum, and the charge has to be examined on app­raisal of the evidence adduced by both the sides. (M. Narayana (Supra) and M. Chenna Reddy vs. V. R. Rao (40 ELR 390). (5) Oral evidence has to be judged with greatest care as very often the evidence is of partisan witnesses like workers, agents, supporters and friends who have to be regarded as highly interested. So corroboration from independent source, unlying circumstances, or contempo­raneous and unimpeachable documents is sought for as a matter of prudence to lend assurance to the verbal testimony. D. Venkata Reddy (supra), Kanhaiyalal vs. Manna Lal (AIR 1976 SC 2836), Rahim Khan vs. Khurshid Ahmed ( AIR 1975 SC 290 ) and Lakshmi Raman vs. Chandm Singh AIR 1977 SC 587 ). D. Venkata Reddy (supra), Kanhaiyalal vs. Manna Lal (AIR 1976 SC 2836), Rahim Khan vs. Khurshid Ahmed ( AIR 1975 SC 290 ) and Lakshmi Raman vs. Chandm Singh AIR 1977 SC 587 ). (6) Mere consistency in the evidence may not weigh, as tutored witnesses are capable of being consistent. So, if the evidence is fraught with inherent improbabilities and replete with unnatural tendencies, Court may reject the same. D. Venkata Reddy (supra). To this, it may be added that necessary particulars, state­ment of facts and essential ingredients of corrupt practices must be pleaded with exactitude and precision as stated in Sultan Salehuddin (supra); and Daulat Ram vs. Anand Sharma, AIR 1984 SC 621 . The petitioner has also to give time, place, names of persons etc. relating to the alleged corrupt practice, and the pleading must further show as to whether the corrupt practice was indulged in by (a) the candidate himself or (b) by his autho­rised election agent or any other person with express or im­plied consent, as pointed out in Daulat Ram (supra). Needless to say that no evidence can be led which is beyond pleadings as pointed out in Surinder Singh vs. Hardayal Singh, AIR 1985 SC 89 . 4. Before discussing the issues, it would be useful to set out the calendar of dates fixed by the Election Commission for the purpose of holding the election. (a) 21.3.83 - Friday, as the last date for making nominations. (b) 22.1.83 - Saturday, as the last date for the scrutiny of nominations. (c) 24.1.83 - Monday, as the last date for the withdrawal of candidature. (d) 17.2.83 - Thursday, as the date on which the poll shall, if necessary, be taken. (e) 28.2.83 - Monday, as the date before which the election shall be completed. 16. (b) 22.1.83 - Saturday, as the last date for the scrutiny of nominations. (c) 24.1.83 - Monday, as the last date for the withdrawal of candidature. (d) 17.2.83 - Thursday, as the date on which the poll shall, if necessary, be taken. (e) 28.2.83 - Monday, as the date before which the election shall be completed. 16. As to when consent of a candidate can be read in such a matter, I would refer to a decision of this Court in P. C Bawituanga vs. Brigadier T. Sailo (R. P. No. 1179), wherein the law in this regard was reiterated by me as below : - "(1) It cannot be equated with knowledge; (2) it is different from connivance; (3) it need not be expressed and can be inferred from facts and circumstances of a case; (4) the fact that an action has been taken by an agent as understood in the Election law is not enough to imply consent of the candidate; (5) this cannot also be inferred from mere close relation­ship or other relationship or political affiliation; (6) if the agent be a regular worker in whose hands elec­tion campaign has been left, or if he be the sole agent implied consent of the candidate may be read; (7) If something be done in the presence of a candi­date, or is said to his hearing, implied consent may be taken; To this, I shall now add that the candidate must have knowledge as well of the thing done. (8) If numerous acts of one nature are done to the knowledge of the candidate, it may be accepted that the same was done with his consent." 17. So, though consent need not be express, I do not find any clinching circumstance to hold that the respondent had consented in what was done from 14th to 16th February, as (1) none of the persons who were involved in the occurrence can be regarded either as the sole agent of the respondent, or regu­lar workers of the respondent in whose hands election campaign had been left; (2) the confinement was not in presence of the respondent; nor (3) there were ''numerous acts" of the kind with which we are concerned. It may be reminded that mere close relationship or political association will not do in this regard. 18. It may be reminded that mere close relationship or political association will not do in this regard. 18. As to the concerned persons being agents of the res­pondent, it may be stated that they would be so if they had worked for him with his consent, in view of what has been stated in Explanation-1 to section 123 (1) of the Act. As to Avho can be regarded as an agent within the meaning of Expla­nation-1 was examined by me in T. Chuba vs. Kariba Ao, 1983 (1) GLR 470, wherein after examining the case law on the sub­ject, the following was staled in this regard : - An election agent or polling agent could undoubtedly be an agent. (2) Any other person specifically appointed by the can­didate to do any election work would also be an agent. (3) Payment of any kind is however not necessary to regard an employed person as an agent. (4) Every person who is a de facto member of the staff who is conducting the election, and whose service is directly or indirectly recognised or made use of by the candidate would be an agent. (5) The authorization to act on behalf of the candi­date may be express or it may be implied from circums­tances. If the candidate accepts service of the person con­cerned, the same would amount to rectification of the agency. (6) Canvassing with the authority of the candidate or along with the candidate is a good proof of agency, though there may be exception to this rule. Thus can­vassers may or may not be agents, though canvassing is one of the things from which agency may be inferred. (7) The political party setting up the candidate would be an agent of the candidate. (8) Prominent members of the political party would also be agents. (9) A mere volunteer would not however be an agent nor an officious intermeddler. (10) Anybody would be agent if be does any act in fur­therance of the prospect of the candidate with the latter's consent. (11) Agency cannot be inferred from remote causes like personal intimacy, close friendship or general political indent Station." 45. Issue No. 7 : This issue requires determination of the question as to whether the respondent was disqualified to be a (candidate on the ground that he is not a citizen of India. (11) Agency cannot be inferred from remote causes like personal intimacy, close friendship or general political indent Station." 45. Issue No. 7 : This issue requires determination of the question as to whether the respondent was disqualified to be a (candidate on the ground that he is not a citizen of India. The case of the petitioner, in this regard, is that the respondent was bora in 1948 in the district of Dhaka (now in Bangladesh), and so far as he remembered, the respondent came to India in 1958 after completing his lower primary education there; and sos the res­pondent was not a citizen of India as he had not obtained citi­zenship certificate from the competent authority. The counter-case of the respondent is that he was born in Hallidaygunj (in Meghalaya) in 1949 and had done his lower primary education in the Lower Primary School at Hallidaygunj. The question relating to citizenship being very important as it touches the whole gamut of civil rights available to a citizen of India, the same has to be scrutinised very carefully. For the acceptance of this issue, there has, therefore, to be unimpeachable evidence in this regard, 46. It may first be stated that here too there is a depar­ture from the pleading inasmuch as though as per the affidavit of the petitioner, para 23 of the petition which contains nece­ssary averment in this regard, was sworn to be as true to the best of knowledge of the petitioner, from his evidence it appears that he had known about the alleged fact of the respondent having been born in the district of Dacca (Dhaka) in 1948 from Habibur Rahman, the father of the returned candidate; so, this fact was not really true to his knowledge. Then the petitioner's evidence that be had derived the required information during the election period from the father of the returned candidate after scrutiny of nomination paper seems doubtful as it is not his evi­dence, indeed nobody has categorically stated, that father of the respondent was in Hillidayguaj during the relevant period. Though the statement of PW 2, PWs 3 and 21 that Hibibur Rahman is presently in Dhaka would indicate that he was earlier in India; but when ? - was it before the election, during the election or after the election ? Though the statement of PW 2, PWs 3 and 21 that Hibibur Rahman is presently in Dhaka would indicate that he was earlier in India; but when ? - was it before the election, during the election or after the election ? The further evidence of PW 2 that Hibibar Rahmaa had once came to India in 1980 on a Bangladeshi passport does not also help us in knowing as to when Habibur Rahman had thereafter left for Bangladesh. As against this the evidence of RW. 5 that while returning from Kukurmara on 11-2-83 he had met his mo­ther and brothers at Hallidaygunj, and his having said nothing about his father; and the statement of RW. 21 that his mother was in India during the election period, and his silence about his father being also here during the relevant period (as he was nit questioned about it in cross-examination) would tend to show the absence of Habibur Rahman from Hallidaygunj during the election. There is thus lack of clinching evidence regarding the availability of Habibur Rahman in Hallidaygunj during the relevant period to give the information claimed by the petitioner to have been derived by him from the father of the respondent after the scrutiny of the nomination papers was over Further it is also not known as to what was the occasion which led the petitioner to talk to the father of the respondent about the place and year of birth of the respondent. This apart, if the petitio­ner had derived this information from the father of the respon­dent, his deposition on the subject has to be regarded as hearsay, which would strictly speaking be admissible only if the infor­mant was also examined, for which purpose the petitioner had, however, taken no steps. 47. Apart from the evidence of PW. 2 on this issue, which does not inspire confidence because of what has been stated above the only other witness examined on this point is PW. 3, who is a teacher by profession and had started working in Holliday-gun Junior Basic School from 1949 in which year he had served for about a month. Thereafter, he was in the school from 1951 to 1954, to come again in 1961 where after he was transferred in 1962 to find himself again in the school from the month of June, 1982. These years of PW. Thereafter, he was in the school from 1951 to 1954, to come again in 1961 where after he was transferred in 1962 to find himself again in the school from the month of June, 1982. These years of PW. 3s working in the school are important because the returned candidate's case is that he had studied in the aforesaid school from 1955 to 1959. The evidence of PW. 3 that he did not get the respondent as a student of the school in question during the period he was there cannot, therefore, assist the petitioner much inasmuch as this witness could not have had any personal knowledge on the question of the returned candidate having studied in the afore­said school during 1955 to 1959. To fortify the statement of PW. 3, reliance was, however, sought to be placed on Exhibit - 12 which is the Admission Register No. 1 of the school for the period from 1.3.25 to 21.10.59. A perusal of this register shows that the name of the respondent does not find place in it. This fact, however, has no cutting edge because of the statement of PW. 3 that during the years 1951 to 1954, when he was in the school as Headmaster, the Admission Register does not show any en­try in his hand though there were admissions. In fact, there is no entry at all for the years 1952 and 1953. Though this witness has not clearly stated that the admissions during the period 1951 to 1954 must have been recorded by him, but that is implied, because it is not his evidence that there was any clerk in the school to do this job. From the endorsement of the A.S.I, (dated 18.5.52) in the " Remarks" column of the register in the last but one page (as this register has no pagi­nation, it has not been possible for me to give the page num­ber) stating that the " teacher is to write all the new comers from the very beginning of the year “, it is clear that the entries have to be made by a teacher. From the evidence of PW. 3 it appears that the school had only one teacher, and so this witness was the Headmaster of the school earlier also, as he was when he gave evidence in the court. From the evidence of PW. 3 it appears that the school had only one teacher, and so this witness was the Headmaster of the school earlier also, as he was when he gave evidence in the court. Column 20 of the register requires "Signature of the Principal/Headmaster'' and none of the initials for the concerned period was identi­fied by this witness to be his. 47A. Some faults in maintaining the register was also elicited from PW. 3 in cross-examination, which are (1) insertion of a name between serial 32 and 33 in the year 1954; and (2) simi­lar insertion between serial 77 and 78 in 1957. I have also noticed (1) that after serial No. 78 in 1956, the next serial mentioned is 75; and (2) some entries for the year 1947 have started after that of 11.1.51. Because of all these, the case of the res­pondent cannot be knocked down on the ground that his name does not find place in Exhibit-12, the Admission Register. The petitioner made efforts to buttress his case by calling for the Attendance Register of the school for the period from 1955 to 1959. The same could not, however, be brought by PW. 3, which was stated by the witness due to the fact that the earlier Headmaster Mahasin Ali had not handed over the same to him. According to this witness, this matter was brought to the notice of the Managing Committee and a proceeding had been drawn against Mohasin Ali in 1983, as per Exhibits 13 and 14 (the resolution of the Managing Committee taken on 12-6-83 finding place in Exhibit 13 which was confirmed later by Exhibil-14), who as per PW. 3, is presently an Assistant Teacher in Singimari Girls' L P. School, of which the respondent was said to be the Secretary. On these facts, no adverse inference can be drawn against the petitioner for his having taken no steps to procure the Attendance Register. 48. As against the above statement of the petitioner; the respondent has pressed into service the fact of his having been accepted as a citizen of India all throughout because of which his name got reflected in the electoral rolls and also in the National Register of Citizens (NRC) of 1951. 48. As against the above statement of the petitioner; the respondent has pressed into service the fact of his having been accepted as a citizen of India all throughout because of which his name got reflected in the electoral rolls and also in the National Register of Citizens (NRC) of 1951. Exhibit-P. Shri Mahanta would not, however, like me to look into this docu­ment inasmuch as the same is not even admissible in evidence as it was prepared by Census Department as deposed by RW. 8. In support of this contention, learned counsel placed reliance on Bhanbasa vs. Union of India, AIR 1970 A&N 206 in which it was held that such records are not admissible having been prepared by the officers appointed under the provisions of the Census Act, whose section 15 states that records of census are not open to inspection, nor admissible in evidence not­withstanding anything to the contrary in the Evidence Act. Though Shri Mahanta seems to be correct in his legal submission, I would like to state that the attitude taken by the petitioner in this regard has not much to appreciate inasmuch as it was he at whose instance the NRC had been called for; but finding that the name of the respondent appears in the NRC, shelter of law was taken by him. It may be stated that though the name of the respondent in the NRC has been written as Khursed Alam, the same has been explained by the respondent by stating that his full name, Khorsedur Rahman Khan, was adop­ted after 2/3 years of his birth when "Akika“ was held, be fore which he was called by the name of Khursed Alam. 49. Exhibit 16 cannot, however, be ignored. This exhibit is the counterfoil of the certificate dated 6.1.60 issued by the Head Teacher of "Halidaygonj Govt. L. P- School" (some let­ters before the name of the school are not very intelligible) in the name of the respondent certifying that he had been pro­moted to Class III on 2nd January, and had studied in the school up to 31.12.59. I have looked into the book containing the counterfoils of certificate issued, and the book does speak of it having been in existence for long, and on the face of it I do not doubt anything about its genuineness. I have looked into the book containing the counterfoils of certificate issued, and the book does speak of it having been in existence for long, and on the face of it I do not doubt anything about its genuineness. Though this exhibit sheds no light on the question of citizenship of the re­spondent, it demolishes the case of the petitioner that the ret­urned candidate had not studied in any L. P. School in India, but had got himself admitted in Shamsher Ali Government High School at Sukchar in Class-IV after having come to India, as far as the petitioner remembered, in 1958 before which he-had done his lower primary education in Dhaka. By referring to Exhibit-16, Shri Mahanta, however, contended that if the date of birth of the respondent is calculated on the basis of this certificate, the same would come to 29/6/51 inasmuch as it has been stated in this document that the age of the respondent was years 6 months 2 days as on 31/12/59. It is argued that the Certificate cannot, therefore, be accepted as correct inasmuch as the respondent himself stated in his evidence that he was born on 14/11/49. It is, however, common knowledge that the school age is often deflated for various purposes, and on the basis of the contradiction between the two dates of birth, the certificate Exhibit-16 cannot be ignored from consideration. 50. Even if it were to be accepted that the petitioner (sic, Respondent) was born in the territory of India, as defined in the Constitution, on 14-11-49, it is contended by Shri Mahanta that the respondent would not become a citizen of India by force of Article 5 of the Constitution because, apart from being born in the territory of India, for a person to be a citizen of this country under Article 5(a), be must have had his domicile in India at the commencement of the Constitution, which date has to be ta­ken as 26.11.49 because of what has been stated in Article 394. In so far as the question of domicile is concerned, I would refer to the evidence of the petitioner himself that before partition of this country in 1947, the father of respondent used to do busi­ness in Hallidaygunj. In so far as the question of domicile is concerned, I would refer to the evidence of the petitioner himself that before partition of this country in 1947, the father of respondent used to do busi­ness in Hallidaygunj. Not only this, it is the further statement of the petitioner in chief examination that the respondent's father had a ready-made garments shop at Hallidaygunj, which had been seen by him since his childhood. This would show continuous residence of Habibur Rahman (father of the respondent) in Halli­daygunj before the partition of the country with a particular intention, which has to be taken as the intention to reside for ever in this country. Such a residence will satisfy the dual require­ments of faction of residence with necessary animus; and cannot be taken as purely fleeting which would satisfy the test of domi­cile laid down in Central Bank vs. Ram Narain, AIR 1955 SC 35. This decision is important for the case at hand for two rea­sons (1) The facts were somewhat similar to what we find here. There, a person and his ancestors were living in Multan, had a considerable business in that town, and had no home in India. It was, therefore, held that the domicile of origin must be held to be in the district of Multan, which having fallen in Pakistan on partition, the concerned person was assigned Pakistani domicile. Here, Habibur Rahman was living in Hallidaygunj, had his busi­ness there at least till the country was partitioned, and there is no clear evidence that he had then his home (in the sense of ha­ving a place of permanent abode) in Dhaka also. On these facts his domicile in origin has to be accepted as that of India. If that be so, the domicile of the respondent at the time of his birth would also be of this country, because it is a settled prin­ciple of International Law that a child acquire' at birth a domi­cile of origin, if legitimate and born in his father's lifetime, the domicile of his father, as stated at p. 183 of Cheshire's "Private International Law'', 9th Edn. (See also p. 194 of D. Basu's Commentary on the Constitution of India, 6th Edn.) (2) This deci­sion also lays down that the domicile of origin prevails until a new domicile has been acquired, so that if a person leaves the country of his origin with the undoubted intention of never re­turning to it again, nevertheless the domicile of origin adheres to him until he actually settles with the requisite intention in some other country. To this, I would add that the burden of proving a change of domicile lies in all cases upon those who allege that a change has occurred. (see, p. 168 of Cheshire's aforesaid Trea­ties). From the evidence led in this case, it cannot be held that by the time of commencement of the Constitution (which date has to be taken as 26.11.49 for the purpose at hand), Habibur Rahman had acquired the domicile of the then Pakistan. Indeed, the evidence of the petitioner that he had seen father of the respondent doing business in Hallidaygunj "since his childhood" would bring the year of residence of Habibur Rahman in India very near 1949, as the petitioner must have been born in 1939 (though he did not remember the year of his birth), as he gave his age about 44 years when he swore the affidavit to this petition in 1983. 51. The assertion of the petitioner that Habibur Rahmaa had left for the then East Pakistan after partition is not enough to stand in the way of the respondent for three reasons. First, it) is not knowa from the petitioner's evidence as to when exactly Habibur Rahman had left for East Pakistan. Secondly, as already stated, merely because of Habibur Rahman's leaving for the then East Pakistan, it cannot be held that there was a change of domi­cile; more so, because it is also the evidence of the petitioner that he had come back to India after 3/4 years, following which a case was instituted against Habibur Rahman in Tura which ultimately resulted in deportation of Habibur Rahman to the then East Pakistan, where after also he came to India in 198C-this time on a passport of Bangladesh. From the fact that Habibur Rahman had subsequently come on a Pakistani or Bangladeshi Passport, it can­not be held by this or any other Court that he had acquired citizenship of that country inasmuch apiary question arises as to whether an Indian citizen has acquired the citizenship of ano­ther country, the same can be determined, because of what has been stated in section 9(2) of the Citizenship Act, 1955, read with Rule 30 of the Rules framed there under, by the Central Govern­ment only and not by the Courts as pointed out in State vs. Ab­dul Khader, AIR 1961 SC 1467 . Thirdly, even if Habibur Rah­man had acquired the citizenship of the then East Pakistan, the same would not affect the citizenship of the respondent, if by force of Article 5 he had become a citizen of India at the co­mmencement of the Constitution. This is for the reason that every person who is or deemed to be a citizen of India under Articles 5 to 8 of the Constitution, continues to be such citizen, because of what has been stated in Art. 10, subject to the pro­visions of any law that may be made by the Parliament, or till he has voluntarily acquired the citizenship of any foreign State as mentioned in Article 9. The Parliament did make a law (Citi­zenship Act, 1955) contemplated by Article 10 (whose prevai­ling power is saved by Article 11); but none of the modes men­tioned in the aforesaid law for termination of citizenship : (1) renunciation; (2) termination; or (3) deprivation applies to the respondent as the requirements of none of the relevant sections (8-10) are satisfied qua him It may also be pointed out that the present is not a case attracting sub-section (1) of section 8 of the Citizenship Act as there is nothing on record to show that Habibur Rahman had enunciated the citizenship of this country in accordance with the provisions of the aforesaid sub-section, because of which section 8(2) of this Act will not get attracted. 51A. Because of all the above, I would conclude by saying that the petitioner has failed to establish his case that respondent was not a citizen of India at the relevant time. This issue, therefore, stands answered against the petitioner. 52. 51A. Because of all the above, I would conclude by saying that the petitioner has failed to establish his case that respondent was not a citizen of India at the relevant time. This issue, therefore, stands answered against the petitioner. 52. Issues No. 1 and 1A : These are the most contentious issues between the parties and are related to the allotment of the symbol of "Hand" to the returned candidate. 53. Certain basic facts relating to these issues may be set out first. When the respondent had filed this nomination pap­ers (Exhibit 1(1) to 1(3) on 21st January, 1983, he had mentioned about three symbols in order of preference. These were : (1) Boat (2) Scales and (3) Rising sun. This apart, he had struck off item No. (b) of his declaration which is required to be filled in by those candidates who are set up by some party. As such, there is no doubt that in the nomination papers the respondent had not made it known that he had been set up by the Indian National Congress (INC) whose reserved symbol was Hand. In fact, one Akramzamman had stated himself to have been set up by the Indian National Congress because of which he selected the symbol of Hand in his nomination papers. The then President of Meghalaya Pradesh Congress Committee, Capt. W. A. Sangma, had also informed the Returning Officer, West Garo Hills by Exhibits 2 dated 15.1.83 that for 49 Rajabala Constituency, with which we are concerned, the Congress Cand­idate was Shri Akramzamman, who had filed his nomination papers from 48-Phulbari Assembly constituency also as a Congr­ess candidate. He subsequently desired to withdraw his candid­ature from Rajabala constituency. This came to the knowledge of the party on 22nd January, 1983 as stated by RW. 10 Pipinson Momin, who, at the relevant time, was the General Sec­retary of the West Garo Hills District Congress Committee. On knowing about this intention of Akramzamman, Capt. Sangma summoned all the members of the Executive Committee and the District Committees to decide who should be the can­didate of the Indian National Congress for Rajabala. The mee­ting decided that the choice should be of the respondent as he had previously sought the ticket of the party. On knowing about this intention of Akramzamman, Capt. Sangma summoned all the members of the Executive Committee and the District Committees to decide who should be the can­didate of the Indian National Congress for Rajabala. The mee­ting decided that the choice should be of the respondent as he had previously sought the ticket of the party. Following this decision, RW 10 went to the residence of the Returning Officer on the morning of 23rd January and gave indication that in place of Akramzamman, the party's candidate would be the resp­ondent. It seems that on receipt of this information, the Dep­uty Commissioner, Tura (who shall be described hereinafter as the Returning Officer) sent W. T. message (Exhibit-J) dated 23. 1.83 to the Chief Electoral Officer (CEO), Meghalaya, seeking the latter opinion by the next day positively as to whether a person who had filed his nomination papers as independent candidate opting symbols of Boat, Scales and Rising Sun (as the respondent had done) could be allotted the reserved symbol of INC. 54. Next day morning Shri Momin met the respondent in his residence and informed him that he would be given the party ticket. On that day around noon, a written information (Exhi-bit-4) was also submitted to the Returning Officer informing se­lection of the respondent as the candidate of the Indian Natio­nal Congress. The respondent also by Exhibit-3 declared that that he was the candidate of the Indian National Congress and he chose Hand as his symbol under para 8(1) of the Election Sy­mbols (Reservation and Allotment) Order, 1968, hereinafter, the Symbols Order. It may be stated that the date of withdrawal was also 24.1.83 and as required by section 37 of the Act, Akramozzaman had submitted his notice of withdrawal (Exhibit-A) before 3 PM of that day. 55. On these facts, the Returning Officer was called upon to decide before publishing the list of contesting candidates as to which symbol could be allotted to the respondent. This require­ment follows from what has been laid down under section 38 (1) of the Act and Rule 10 of the Conduct of Election Rules, 1960, hereinafter' called the Rules. By his order passed on 24.1.83, (Exhibit-5), the Returning Officer rejected the applica­tion of the respondent to treat him as a candidate of the Indian National Congress and to allot him the reserved symbol of Hand. By his order passed on 24.1.83, (Exhibit-5), the Returning Officer rejected the applica­tion of the respondent to treat him as a candidate of the Indian National Congress and to allot him the reserved symbol of Hand. The symbol which was allotted to the respondent by Exhibit-6. which contains the list of contesting candidates in Form 7A, was instead mentioned as Boat, which was his first pre­ference as per the nomination papers filed by him. It may be stated that before passing the order on 24.1.83, the Returning Officer had received a communication from the Chief Electoral Officer, Meghalaya, numbered as EL. 16/82 (Exhibit-C) which ac­quainted the Returning Officer that the President of the Megha­laya Pradesh Congress Committee had informed the Chief Electo­ral Officer that the respondent had been selected as a Congress candidate, and declaration in favour of Akramazzaman as a party candidate had been cancelled. This message desired the Retur­ning Officer to allot the symbol of Hand accordingly. This communication was regarded as "extremely vague'' by the Retur­ning Officer when he passed his order Exihibit-5 on 24.1.83. It may be stated that on receipt of Exhibit, the CEO had approached the Election Commission vide Exhibit to seek its reply on the question posed by the Returning Officer. 56. Subsequent to the passing of the aforesaid order, the Returning Officer received a W. T. message (Exhibit-7) from the Secretary, Election Commission of India, dated 25.1.83 stating that the reserved symbol may be allotted to a person who had filed his nomination papers as an independent candidate but who is sub­sequently adopted by the recognised party, provided proper re­quest from such recognised party has been made within the prescribed time. Before, however, allotting the reserved symbol, the W.T. message stated that written consent of the candidate in this regard would also be obtained. This communication was also relayed by the CEO to the Returning Officer by Exhibit-1, to be followed by another message from CEO bearing No. 12/83/27 dated 26.1.82 stating that reserved symbol of Hand may be allo­tted to the respondent, and the action taken may be intimated. 57. After adverting to these communications and referring to Rule 10 of the Rules and Para 18 of the Symbols Order, the Returning Officer passed an order on 26.1.83 (Exhibit-8) by which he allotted the reserved symbol of Hand to the respondent. 57. After adverting to these communications and referring to Rule 10 of the Rules and Para 18 of the Symbols Order, the Returning Officer passed an order on 26.1.83 (Exhibit-8) by which he allotted the reserved symbol of Hand to the respondent. This order further required that all the contesting candidates be co­mmunicated about this decision. The allotment of reserved sym­bol was made subject the condition that a letter of consent in this regard was received from the respondent. This consent was communicated to the Returning Officer on 27.1.83 by Exhibit-B. From the materials on record, it is not very clear as to when revised list of candidates in Form 7A was issued, as Exhibit-E (one such form) is dated 24.1.83, and another such form on record (which was markedly-X) bears the dated 5.7.83 (See evidence of P.W 1). This, however, is not material for our purpose, as the real controversy is about the legality, power and authority of the Secretary of the Election Commission in issuing Exhibit-7 58. Relying on the admitted facts narrated above, it has been submitted on behalf of the petitioner by Shri Mahanta that there was non-compliance with the provisions of the Act, Rules and the Symbols Order in allotting the symbol of Hand to the respondent in the way it was done which materially affected the result of the election in so far as it concerned the returned candidate, because of which the election of the respondent has to be declared void, as the case is squarely covered by section 100 (1) (d) (iv) of the Act. To appreciate the submission of the learned Counsel, we may have a look at the relevant statutory provisions. At first, we may note sections 37 and 38 of the Act which alone are relevant for the purpose at hand. "37. Withdrawal of candidature - (1) Any candidate may withdraw his candidature by a notice in writing which shall contain such particulars as may be prescribed and shall be subscribed by him and delivered before three O'clock in the afternoon on the day fixed under clause (c) of section 30 to the returning officer either by such candidate in person or by his proposed or election agent who has been authorised in this behalf in writing by such candidate. 38. 38. Publication of list of contesting candidate - (1) Immediately after the expiry of the period within which can­didatures may be withdrawn under sub-section (1) of sec­tion 37, the returning officer shall prepare and publish in such form and manner as may be prescribed a list of contesting candidates that is to say, candidates who were included in the list of validly nominated candidates and who have not withdrawn their candidature within the said period. (2) The said list shall contain the names in alpha­betical order and the addresses of the contesting candida­tes as given in the nomination papers together with such other particulars as may be prescribed." The form and manner in which the list of contesting candi­dates is required to be published has been prescribed by Rule 10(1) of the Rules which reads as follows : - “10. Preparation of list of contesting candidates - (1) The list of contesting candidates referred to in sub-section (1) of section 38 shall be in Form 7A or Form 7B as may be appropriate and shall contain the particulars set out therein and shall be prepared in such language or langu­ages as the Election Commission may direct.” A reference to Form-7A mentioned in Rule 10 (I) shows that the symbol allotted to a contesting candidate has also to be mentioned under column 4. Rule 5, 10 (4) and 10 (5) are also material for our purpose and they read : "5. Symbols for elections in parliamentary and assembly constituencies - (1) The Election Commission shall, by noti­fication in the Gazette of India, and in the official Gaze­tte of each State, specify the symbols that may be cho­sen by candidates at elections in parliamentary or assembly constituencies and the restrictions to which their choice shall be subject. Symbols for elections in parliamentary and assembly constituencies - (1) The Election Commission shall, by noti­fication in the Gazette of India, and in the official Gaze­tte of each State, specify the symbols that may be cho­sen by candidates at elections in parliamentary or assembly constituencies and the restrictions to which their choice shall be subject. (2) Subject to any general or special direction issued by the Election Commission either under sub-rule (4) or sub-rule (5) of rule 10, where at any such election more nomination papers than one are delivered by or on behalf of a candidate, the declaration as to symbols made in the nomination paper first delivered, and no other decla­ration as to symbols, shall be taken into consideration under rule 10 even if that nomination paper has been rejected.” (4) At an election in a parliamentary or assembly cons­tituency, where a poll becomes necessary the returning officer shall consider the choice of symbols expressed by the contesting candidates in their nomination papers and shall, subject to any general or special direction issued in this behalf by the Election Commission : (a) allot a different symbol to each contesting candidate in conformity, as far as practicable, with his choice; and (b) If more contesting candidates than one have indica­ted their preference for the same symbol, decide by lot to which of such candidates the symbol will be allotted. (5) The allotment by the returning officer of any sym­bol to a candidate shall be final except where it is in­consistent with any directions issued by the Election Commission in this behalf in which case the Election Commission may revise the allotment in such manners as it thinks fit. The provisions of the Symbols Order which have bearing for the case at hand are those which find place in paras 13 and 18, which read as below : - "13. The provisions of the Symbols Order which have bearing for the case at hand are those which find place in paras 13 and 18, which read as below : - "13. When a candidate shall be deemed to be set up by a political party - For the purposes of this Order a candidate shall be deemed to be set up by a political party if, and only if, (a) the candidate has made a declaration to that effect in his nomination paper; (b) a notice in writing to that effect has, not later than 3 p.m. on the last day of withdrawal of candida­tures, been delivered to the returning officer of the cons­tituency; and (c) the said notice is signed by the president, the secretary or any other office-bearer of the party and the president, secretary or such other office-bearer is autho­rised by the party to send such notice and the name and specimen signature of the president, the secretary or such other office bearer are communicated in advance to the returning officer of the constituency and to the Chief Electoral Officer of the State." "18. Power of Commission to issue instructions and directions - The Commission may issue instructions and directions - (a) for the clarifications of any of the provisions of this Order; (b) for the removal of any difficulty which may arise in relation to the implementation of any such provisions; and (d) in relation to any matter with respect to the reservation and allotment of symbols and recognition of political parties, for which this Order makes no provision or ma­kes insufficient provision, and provision is in the opinion of the Commission necessary for the smooth and orderly conduct of elections." 59. Before analysing the legal effect of the gamut of these provisions in so far as the power of Election Commissions to decide the question of allotment of symbol is concerned, it may be stated that the submission of Shri Mahanta that the Secre­tary of the Election Commission, who is the author of Exhibit-7, had no authority in law in issuing any order relating to allot­ment of symbol inasmuch as the power vests in the Election Co­mmission is amply answered by section 19A of the Act which has stated that the functions of the Election Commission under the Constitution, the Representation of the People Act, 1950 and the Act or under rules made there under may subject to such gene­ral or special direct ion? if any, as may be given by the Election Commission in this behalf, be performed by the Deputy Election Commissioner or by the Secretary to the Election Commission. No general or special direction issued by the Election Commi­ssion in this regard has been brought to my notice by Shri Mahanta. 60. It would also be apposite before diving deep in the subject to state that violation, if any, of the provisions contained in the Symbols Order as well, would attract the operation of sub-clause (iv) of clause (d) of section 100(1) of the Act inasmuch as it has been held by the Supreme Court in Rooplal v Nachk-attar Singh, AIR 1982 SC 1559 , that any breach of the Symbols Order would amount to non-compliance of an order made under the Act, of which the aforesaid sub-clause (iv) speaks of, because the Symbols Order made by the Election Commission in exercise of powers conferred by Article 324 of the Constitution read with Rules 5 and 10 of the Rules has to be regarded as an order made under the Act. The contrary submission of the learned Advocate General, Meghalaya, who appeared for respondents 4 and 5, that the ratio of the aforesaid decision may not be taken as a decision on the point under examination as the Hon'ble Sup­reme Court was dealing in the aforesaid case with this question in the context of striking out of some paragraphs in the pleading ordered by the High Court, has not much to commend inasmuch as it is apparent from para 12 of the decision that one of the questions which directly arose was whether any breach of para 13 or 18 of the Symbol's Order amounted to non-compliance with the provisions of the Constitution or the Act or any Rules or orders made under the Act, to which a clear answer was given that it would be so because the Symbols Order has to be regar­ded as an order made under the Act. 61. It has, therefore, to be seen whether in the present case there was any violation of the Symbols Order, or for that matter, of any provision of the Constitution, the Act or the Rules. 62. Another fringe submission of Shri Mahanta may also be disposed of, which is that Capt. Sangma had been author­ised by the Executive Committee of the Congress (I) by Exhibit -I to intimate the names of candidates proposed to be set up by the Party; and it was in exercise of this power that Capt. Sangma had intimated by Exhibit -2 the names of the candid­ates who had been set up by the Indian National Congress to contest the election from the different Assembly constituencies of West Garo Hills District. This authority, according to the learned counsel, did not vest any power in Capt. Sangma to change the names of the candidate already notified and, in fact, Exhibit -4 does not speak of cancellation of the names of Akramzamman as a Congress candidate for Rajabala constituency, and selection of the respondent in his place. On the facts of the case, there is no doubt that Exhibit -4 had been issued by Capt. Sangma after the Pradesh Congress Committee had come to know about the wish of Shri Akramazamman to with­draw his candidature from Rajabala constituency and to contest the election only from Phulbari constituency. This had come to the knowledge of the party on 22nd January, 1983. Sangma after the Pradesh Congress Committee had come to know about the wish of Shri Akramazamman to with­draw his candidature from Rajabala constituency and to contest the election only from Phulbari constituency. This had come to the knowledge of the party on 22nd January, 1983. The power which was conferred by Exhibit-I, and which was invoked while writing Exbibit-2, could also be pressed into service while issuing Exhibit-4. The subsequent communication does impliedly cancel the intimation given by Exhibit-2 in so far as Rajabala constit­uency is concerned; though no express statement in this regard has been made in this Exhibit. The power to do a certain act will encompass in it, subject to express provision to the contr­ary, the implied power to undo or modify that act. Section 21 of the General Clauses Act will bear this statement. I have mentioned about this provision of law, though the same is not attracted, but which undoubtedly throws light on the ambit of the power given to a person to do a certain act. No fault can also be found with the intimation to the Returning Officer by Exhibit-4 (that the respondent had been set up as a party candidate) on the score of the respondent's name not having been approved by the Central Parliamentary Board of the Party. There is nothing on record, if while issuing Exhibit - 2 the normal procedure for selection of a candidate about which RW JO Pipingson Momin deposed, had been followed; and if in such a situation, Capt. Sangraa can be held to have the authority to issue Exhibit - 2, he cannot be denied the same while writ­ing Exhibit - 4. This apart, even if the intimation of the name of the respondent as a candidate was against any proce­dure laid down by the party, it is a matter concerning party discipline only, as no violation of any statutory provision in the concerned act of Capt. Sangma has been brought to my notice. I would also state here that the second intimation from Capt. Sangma had been received by the Returning Officer within "prescribed time", as Exhibit - 5 gives the time and date of receipt of this notice as 12.10 PM of 24.1.83. 63. Sangma has been brought to my notice. I would also state here that the second intimation from Capt. Sangma had been received by the Returning Officer within "prescribed time", as Exhibit - 5 gives the time and date of receipt of this notice as 12.10 PM of 24.1.83. 63. In support of the power of the Election Commission, or for that matter, the Secretary, to the Commission, learned Advocate General, Meghalaya, has placed strong reliance on Sadiq Ali vs. Election Commission, AIR 1972 SC 187 . wherein it has been stated in para 37 by referring to Rules 5, 10(4) and 10(5) of the Rules that the Commission "has been clothed with plenary powers" by the above mentioned Rules in the matter of allotment of symbols. In was further observed that if : "the Commission is not to be disabled from exercising effectively the plenary powers vested in it in the matter of allotment of symbols and for issuing directions in connection therewith, it is essential that the Commission should have the power to settle a dispute in case claim for allotment of the symbol of a political party is made by two Laval claimants''. 64. The aforesaid observations cannot be read dehors the controversy before the Court which was the dispute between two groups relating to their recognition as the political party known as Indian National Congress. The power to settle this dispute has been given to the Commission by para 15 of the Sym­bols Order. The Commission had not done anything, while deciding as to which of the groups before it could be recognised as the political party known as the Indian National Congress, against the provisions of the Act or the Rules or the Symbols Order. The mention about the existence of plenary power in the Commission cannot be read to mean that it could even act against any provision of the Act, Rules or the Symbols Order. 65. That the Commission cannot issue any direction against a statutory provision has been laid down very clearly and in a very emphatic language by the Supreme Court in A. C. Jose vs. Slvan Filial, AIR 1984 SC 921 . That case required examination of the order of the Commission directing casting of votes by means of electronic machines. 65. That the Commission cannot issue any direction against a statutory provision has been laid down very clearly and in a very emphatic language by the Supreme Court in A. C. Jose vs. Slvan Filial, AIR 1984 SC 921 . That case required examination of the order of the Commission directing casting of votes by means of electronic machines. After referring to the previous decision of the Apex Court in Punnuswami AIR 1952 SC 64 , Sudiq Alt (supra) and Mahinder Siwh, AIR 1978 SC 851 , the Court observed in para 21 that the Commission cannot be allowed to convert itself into "an absolute despot in the field of election so as to give direction regarding mode and manner of election by-passing the pro­visions of the Act and the Rules purporting to exercise power under Articles 324''. It had been earlier stated in para 7 that by "no standards can it be said that the Commission is a third Chamber in the legislative process within the scheme of the Constitution. Merely being a creature of the Constitution will not give it ple­nary and absolute power to legislate as it likes without refere­nce to the law enacted by the legislature''. The law in this res­pect was thereafter summarised in para 25 by stating as below : - (a) when there is no Parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections, (b) where there is an Act and express Rules made there under, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law (both sta­tute and Rules) in the matter of superintendence, dire­ction and control as provided by Art 324, (c) where the Act or the Rules are silent, the Commission has no doubt plenary powers under Art. 324 to give any direction in respect of the conduct of election, and (d) where a particular direction by the Commission is sub­mitted to the Government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it as its own sweet will even if the approval of the Government is not given.'' This summing up unequivocally lays down that the Commission would be free to pass any order in respect of the conduct of the election if there be no parliamentary legislation or rules, but where there be statutory provision concerning the point in ques­tion, the Commission cannot over-ride the Act or the Rules and pass orders in direct disobedience to the mandate of the Act and the Rules. In other words, the power of the Commission is meant to supplement, rather than to supplant the law (both statu­tes and Rules). What has been stated in this decision about the supremacy of the Act and the Rules will apply proprio vigore to the Symbols Order, as these provision has been held in Roop Lot (supra) as an order made under the Act because of which it will enjoy the same status as given to the rules made under the Act. The decision in A. C. Jose has thus to a great extent limited the power of the Election Commission in acting in any manner dee­med fit by it in exercise of the powers of superintendence, direc­tion and control vested in it by Article 324 of the Constitution. 66. This being the position in law as regards the power of the Commission to deal with any matter in respect of the con­duct of elections, let it be seen whether the direction given in the present case by the Secretary of the Commission, as contai­ned in Exhibit-7 can be regarded as valid in the eye of law. To persuade me that the Commission had acted legally in giving the direction in question, the learned Advocate General has sought to rely on some decisions of the High Courts. To persuade me that the Commission had acted legally in giving the direction in question, the learned Advocate General has sought to rely on some decisions of the High Courts. The first in point of time is the rendering of the Patna High Court in Manilal vs. Budhinath, AIR 1962 Patna 18, where the election of the returned candidate was declared as void by the Election Tribunal under section 100(1)(d)(iv) of the Act principally on the ground that the declaration of the appellant as the candidate of the Jharkhand Party by the Returning Officer was bad in the eye of law. The Tribunal had done so because, according to it, the acceptance of the returned candidate as an official candidate of Jharkhand Party was bad in the eye of law for the reason that the information from the Party as required in para 13(c) of the Symbols Order had not been received from the authorised person by 6.2.57, by which date the decision about the symbols had to be made by the Returning Officer. The Order of the Tribunal was set aside by the High Court. A perusal of the judgment shows that a telegram had been received by the office of the Returning Officer on 4th February purporting to have been sent by the General Secretary of the Jharkhand Party, Shri I. Beck, who had informed the Re­turning Officer about the appellant being an official candidate of the Party. It further appears from the judgment that a petition bad been filed before the Returning Officer by 6th February by the local Jharkhand Party reiterating that the appellant was the official candidate of the Party. By this petition, it was prayed that the appellant may be allotted the symbol of Cock assigned to the Jharkhand Party or in the alternative the allotment of Symbol be postponed until noon of 7th February by which time Devi Soren was due to arrive. It may be stated that both Shri Beck and Devi Soren were authorised to convey to the Returning Officer the names of the official candidates of the Party. On the denial of the symbol of Cock to the appellant, representation was made to the Election Commission who directed the Retur­ning Officer, to allot the symbol of the Jharkhand Party to the appellant. On these facts, the direction to the Election Tribunal was held good by the High Court. On the denial of the symbol of Cock to the appellant, representation was made to the Election Commission who directed the Retur­ning Officer, to allot the symbol of the Jharkhand Party to the appellant. On these facts, the direction to the Election Tribunal was held good by the High Court. I am inclined to think that the particular facts of the case persuaded the High Court to take the view as it had done. There was no challenge before the Court to the power of the Election Commission in having issued the direction in question on the score of the same being in violation of para 13 of the Symbols Order. What had instead been agi­tated before the Court was that the Commission had no power either to issue special direction to the Returning Officer or to revise the order of the Returning Officer. This was rejected by the High Court. The vires of the provision conferring power on the Commission to issue special direction was also challen­ged to be negatived by the Court. The further submission in this regard was that hearing of other candidates was necessary before the Election Commission revised the order of the Returning Officer, which submission too was not accepted by the Court. This case is, therefore, no authority for the proposition that the Election Commission could act against the specific provi­sions of the Act, the Rules or the Symbols Order. 67. I and next referred by the learned Advocate General to Ram Autar vs. Satyabir, AIR 1978 All. 201 , wherein the submission was that no direction could be given by the Election Commission after a particular symbol had been allotted by the Returning Officer. The recognised symbol of the Janata Party was not allotted to the respondent on the ground that no notice as required by para 13(b) and (c) of the Symbols Order had been delivered to the Returning Officer within time. An argument was, therefore, advanced before the Court that any direction in this regard could have been issued by the Election Commission only prior to 3 PM of the last date of withdra­wal. An argument was, therefore, advanced before the Court that any direction in this regard could have been issued by the Election Commission only prior to 3 PM of the last date of withdra­wal. In this connection, the Court observed as below in para 16 : - "Even if this argument were to be accepted, it may be stated here that no material has been brought on the re­cord and nothing has been shown that the said directive was not issued by the Election Commission before the appointed time." This would clearly show that the Court was not willing to state that the Election Commission could have issued any order relating to allotment of symbols against requirements of para 13 of the Symbols Order. 68. This decision was cited with approval in Jameel vs. Gul Mohammad, AIR 1980 Rajasthan 166. There what had happened was that the Janata Party initially adopted respondent No.1 Gul Mohammad as its official candidate, but later on the Party changed its mind and selected respondent No.5 Md Sayeed Khan as the official candidate. There being no other communication before the Returning Officer up to 3 PM of the last date of with­drawal, the Returning Officer treated Md Sayeed Khan as the official candidate of the Janata Party and allotted him the res­erved symbol. On the next day, the party approached the Elec­tion Commission and pleaded that the official candidate was Shri Gul Mohammad and that the name of Md. Sayeed Khan was wrongly written. The mistake was ascribed to typographical error. The Commission accepted the plea and allotted the reserved symbol to Gal Mohammad. On these broad facts, the order of the Election Commission was upheld after referring to the afor­esaid decisions of the Patna and Allahabad High Courts and so also to Mohinder Singh, AIR 1978 SC 851 . It may be stated that in the case before the Rajasthan High Court it was poss­ible to argue that the order of the Commission did not viol­ate para 13 of the Symbols Order inasmuch as name of Gul Mohammad had in fact been intimated before the appointed hour, and forwarding of the name of Sayeed Khan was a typogra­phical error. 69. The last decision which was brought to my notice by the learned Advocate General is that of C. Parsuram vs. M. Venkatramai, AIR J985 Andhra Pradesh 169. 69. The last decision which was brought to my notice by the learned Advocate General is that of C. Parsuram vs. M. Venkatramai, AIR J985 Andhra Pradesh 169. Therein two candi­dates had claimed to be Telugu Desam candidates. Confronted with such a situation, the Returning Officer treated both of them on 15.12.82 (the date of withdrawal of the nominations) as independent candidates. Certain directions relating to the allo­tment of symbols were thereafter issued by the Election Commi­ssion requiring allotment of symbol of the Party to Respondent No.1 which were challenged before the High Court. The direct­ions of the Commission were upheld by the Court, inter alia, because the same were not in contravention of any provision of the Act, Rules or Order, as there was no provision in the Rules or Order relating to the question as to what should be done when two candidates claimed to be set up by the same political party. (Sse para 21). Let it be stated that this dec­ision also held that the power of the Commission in this regard is not fettered by the requirements of para 13, and the time limit mentioned therein will not stand in the way of the Commi­ssion in issuing necessary directions in exercise of its power under para 18(b) or (c). 70. What/transpire from the aforesaid decisions of the High Courts are : (i) the allotment of a particular symbol to a candi­date by the Returning Officer has to be subject to any general or special direction already issued by the Election Commission. If the allotment be in contravention of any general or special direction in existence by the time the symbol is allotted the order of the Returning Officer could be revised by the Election Commission. (2) The Election Commission has also the power under certain circumstances to issue special direction relating to the symbol to be allotted to a particular candidate even after 3 PM of the last date of withdrawal, if there be no provision concerning the point with which the Returning Officer was con­fronted. (3) In doing so, the Commission is not reacquired to hear any of the candidates if the symbol given to him is not alte­red. (3) In doing so, the Commission is not reacquired to hear any of the candidates if the symbol given to him is not alte­red. (4) It would also appear from some of the above-ment­ioned decisions that the Election Commission's power in this regard is not fettered by the provisions relating to the time schedule etc, mentioned in para 13, that is, a particular symbol could be directed by the Commission to be allotted even if all the requirements of para 13 are not satisfied. 71. I have no hesitation in accepting points (1) to (3) above; but on point No.(4), I have my serious reservation in view of what has been stated in A. C. Jose (supra). According to me the Commission cannot do anything in exercise of its power under para 18 of the Symbols Order, which will be inconsistent with any express provision of the Act, the rules or orders made under the Act. 72. In taking the above view regarding the power of the Commission, I am conscious of the fact that sub-para (b) of para 18 of the Symbols Order has clothed the Commission with the power of issuing instructions or directions "for the removal of any difficulty which may arise in relation to the implemen­tation" of any provision of the Order. This power having been given for removal of difficulty cannot be exercised, in my con­sidered view, in a way which would run counter to the express provisions made in the Symbols Order, as that will nullify the provisions of the Order made known to all and will violate self-imposed restriction. The non-appearance of the Commission before this Court has disabled me to know as to why- and in exercise of which power, it had issued Exhibit-7. I shall, the­refore, first examine as to whether the Commission could have done so under para 18(b), and then that the validity of Exhibit-7 on the touch-stone of para 18(c). It is nobody's case that this Exhibit was issued in exercise of the power under para 18(a). 73. I shall first take up the ambit of power of a provision like sub-para (b) which clothes a named authority to pass an order to remove difficulty faced in implementing provision (a) of a statute, rule etc. It is nobody's case that this Exhibit was issued in exercise of the power under para 18(a). 73. I shall first take up the ambit of power of a provision like sub-para (b) which clothes a named authority to pass an order to remove difficulty faced in implementing provision (a) of a statute, rule etc. and to start with refer to Jalan Trading Company vs. Mill Mazdoor Sangha, AIR 1967 SC 691, which was a case wherein the validity of section 37 of the Payment of Bonus Act had come up for consideration. That section had empowered the Central Government to pass such order, not incon­sistent with the purposes of the Act, as may be deemed necessary or expedient for removal of difficulties or doubts in giving effect to the provisions of the Act; and had also stated that the order of the Central Government in this regard will be final. The majority held the section as invalid, as, according to it, the provision delegated legislative power to the Government which was regarded as not permissible. According to the majority, the pro­vision in the section that the order must not be inconsistent with the purposes of the Act, did not save the section from the vice of delegation of legislative authority inasmuch as the section had authorised the Central Government to determine for itself what the purpose of the Act were. The majority felt that if in giving effect to the provisions of the Act, any doubt or difficulty arises, normally it is for the legislature to remove that doubt or diffi­culty. It was pointed out that the power to remove doubt or difficulty by altering the provisions of the Act would in subs­tance amount to exercise of legislative authority and it cannot be delegated to an executive authority. The further provision in the section that the order of the Central Government in such a case would be final accentuated the vice of the section. 74. The minority, however, took a different view on this aspect, as it felt, after mentioning about similar provisions in various enactments that the power conferred on the Central Go­vernment in this regard was not legislative, but was "intended to advance the purpose which the legislature has in mind''. 74. The minority, however, took a different view on this aspect, as it felt, after mentioning about similar provisions in various enactments that the power conferred on the Central Go­vernment in this regard was not legislative, but was "intended to advance the purpose which the legislature has in mind''. It was further pointed out by the minority that the power to pass an order of that character could not be used to "add to or de­duct from" that which the Act provides; and that the order could only make smooth the working of the Act particularly In its initial stage, but the same also has to be "within the four corners" of the legislation. 75. While placing reliance on the aforesaid decision in su­pport of my view regarding the reach of para 18(b) of the Sym­bols Order, I am aware of the fact that in Jalan Trading Com­pany, the power was given to a body different from the one which had enacted the legislation, whereas para 18 has clothed the Election Commission itself who had issued the Symbols Order, the power to remove difficulty. But, according to me, this diffe­rence is not material in so far as the view expressed by the mino­rity is concerned, who, while rejecting the contentions regarding excessive delegation had, inter alia, dealt with the purpose and scope etc. of the power given to issue order to remove difficulties irrespective of the person or the body on which such a power is conferred. This would appear from the following observations in para 71 : "The functions so exercised are not legislative functions at all, but are intended to advance the purpose which the legislature has in mind. The power to pass an order of this character cannot be used to add to or deduct from that which the Act provides. The order only 'makes smooth the working of the Act particularly in its initial stages." (Emphasis supplied) The following observation in para 71 is also apposite in this condition : "Apprehending, however, that in the application of the new Act doubts and difficulties might arise and not lea­ving their solution to the Courts, with the attendant delays and expense, the Parliament has chosen to give power to the Central Government to remove doubts and differences by suitable order. The order, of course, would be passed within the four corners of the legislation and would only apply the Act to concerto cases as the Courts do when they consider the application of an Act." (Emphasis mine) 76. The case of M. V. Sinai vs. Union of India, AIR 1975 SC 797 is more clinching as it has dealt with the question with reference to a Regulation made by the President (virtually, the Central Government) and the power of removing difficulty invo­ked in the case was also given to the Central Government by clause (7) of the Regulation in the following language : "If any difficulty arises in giving effect in any Union Territory to the provisions of any Act, or of any rule, notification, or order made or issued there under, the Central Government may by general or special order published in the Official Gazette, make such provision or give such direction as appear to it to be expedient or necessary for the removal of the difficulty.'' 77. The majority speaking through Sarkaria, J., gave a general idea about the nature and purpose of "removal of diffi­culty clause" which came to be known as Henry VIII Clause by stating, inter alia in para 46 that : "In order to obviate the necessity of approaching the legislature for removal of every difficulty howsoever tri­vial, encountered in enforcement of a statute, by going through the time-consuming amendatory procedure, the legislature sometimes thinks it expedient to invest with a very limited power to make very minor adaptation and peripheral adjustment in the statute, for making its im­plementation effective without touching its substance." In so far as the scope and ambit of the aforesaid Clause is concerned, the Court stated as below in Para 47 : - "It will be seen that the power given by it is not uncontrolled or unfettered. It is strictly circumscribed' and its use is conditioned and restricted. The existence or arising of a "difficulty “ is the sine qua non for the exercise of the power. If this condition precedent is not satisfied as an objective fact, the power under this clause cannot be invoked at all. Again, the "difficulty” contemplated by the clause must be a difficulty arising in giving effect to the provisions of the Act and not a difficulty arising aliened or an extraneous difficulty. If this condition precedent is not satisfied as an objective fact, the power under this clause cannot be invoked at all. Again, the "difficulty” contemplated by the clause must be a difficulty arising in giving effect to the provisions of the Act and not a difficulty arising aliened or an extraneous difficulty. Further, the Central Govern­ment can exercise the power under the clause only to the extent it is necessary for applying or giving effect to the Act etc. and no further. It may slightly tinker with the Act to round-Off angularities and smoothen the joints or remove minor obscurities to make it workable, but it cannot change, disfigure or do violence to the basic structure and primary features of the Act. In no case, can it, under the guise of removing a difficulty, change the scheme and essential provisions of the Act. '' 78. It is difficult to hold, in view of what has been sta­ted even by the minority in Jalan Trading, or by the Majority in M. V. Sinai, that Exhibit-7 has been issued in lawful exercise of the powers conferred by para 18 (b). This is so for the reason that Exhibit-7 has definitely deducted from what has been ex­pressly provided in para 13 (a), or to put it differently, this Exhibit is not "within the four corners” of the Symbols Order. This apart, it cannot he said that any difficulty as an objective fact had arisen in implementing the provisions of the Symbols Order. It cannot also be held that by issuing Exhibit-7, the Commission had only slightly tinkered with the Symbols Order, or had rounded-off any angularity or smoothened the joints. What tad been done by the Commission was indeed a change in the structure of para 13 (a) inasmuch as it had in fact directed that for allotting the symbol of a political party declaration of the candidate to that effect in the nomination paper was not nece­ssary. This has to be regarded as a change in the scheme and essential provision of para 13. 79. In view of the above, I am not in a position to hold that Exhibit-7 bad been issued in exercise of powers conferred by Para 18 (b) of the symbols Order. But this is not all. This has to be regarded as a change in the scheme and essential provision of para 13. 79. In view of the above, I am not in a position to hold that Exhibit-7 bad been issued in exercise of powers conferred by Para 18 (b) of the symbols Order. But this is not all. Para 18 (c) has further empowered the Commission to give direction and instruction in any matter for which the Symbols Order has made "no provision'' or " insufficient provision " but the provision in the opinion of the Commission is necessary for "smooth and orderly conduct of elections''. It cannot be said that the. Sym­bols Order has made no provision on the question as to when a candidate shall be deemed to be set up by a political party, and when can the symbol of the party in question be allotted to him. Para 8 clearly lays down that a candidate set up by a National Party shall be allotted the sym­bol reserved for that party and no other symbol. Para 13 has provided as to when a candidate shall be deemed to be set up by a political party. This para is unambiguous regarding the fulfillment of all the three conditions mentioned in it, as it states that the candidate shall be deemed to be set up by a party, "if, and only if" these requirements are satisfied. There is also no scope, according to me, to argue that the word " and " at the end of sub-para (b) could be interpreted as meaning "or". It cannot, therefore, be held that for the matter at band no provision has been made by the Symbols Order. I would, how­ever, agree that as the Symbols Order has not stated as to what would happen if an independent candidate is espoused by political party after filing of nomination papers, the provision of the Symbols Order in this regard could be treated as " insuffi­cient ". The question, however, is whether this lacuna in the Symbols Order could be filled up by the Commission in exercise of its power under para 18 (c) by directing that the reserved symbol could be given to an independent candidate after obtain­ing written consent in this regard' if the request from the party had been received within the prescribed time. 80. 80. As presently advised, I would answer the question in negative for two reasons. First, such a direction by the Commi­ssion would be in direct conflict with what has been stated in clause (a) of para 13 of the Symbols Order which requires that a candidate shall be deemed to be set up by a political party if the candidate has made a declaration to that effect in the nomination paper. On the language of para 13, it can­not be held that this para is only directory in nature, and subs­tantial compliance with the same would do. So, the direction in Exhibit-7 that the reserved symbol could be allotted to an independent candidate after obtaining his written consent in this regard would be in conflict with the requirement of para 13 of the Symbols Order; and on the authority of A. C. Jose (supra) I would hold that the Commission had no authority in law to permit the same, as the direction will supplant, rather than supplement, the provisions of the Symbols Order. Though in the present case, the requirement of sub para (a) alone was waived, but who knows if in any other case, the Commission may not condone the requirement of sub-paras (b) and (c) also ? 81. Secondly, the direction of the type given in Exhibit - 7 cannot at all be said to be necessary for the "smooth and orderly conduct " of the election. Though sub-para 18(c) speaks about the subjective satisfaction of the Commission in this re­gard, it is an admitted position in law that if there be absence of reasonable nexus between the facts and circumstances taken into consideration in forming the opinion and the purpose for which the power is to be exercised, the order passed could be challenged in a court of law. To put it differently, there must be a real and proximate connection between the order passed and the object for which the power could be exercised. What this requirement boils down to is that the facts must be such as could possibly and rationally support the conclusion drawn by the authority. To put it differently, there must be a real and proximate connection between the order passed and the object for which the power could be exercised. What this requirement boils down to is that the facts must be such as could possibly and rationally support the conclusion drawn by the authority. In the present case, non-allotment of symbol of Hand to the respondent could not have at all affec­ted the smooth and orderly conduct of the election inasmuch as the Party in question could have lent its support to the respondent even if he were to be treated as an independent can­didate. Such a practice is not unknown in the election world. In fact, RW 3 himself stated that no Congress candidate hav­ing been left in the constituency, he would have received the support of the Party. Had the fact been that two persons were claiming to be candidates of one and the same party, the reso­lution of the question as to whom the party symbol should be allotted would have come within the ambit of sub-para (c) as, in that situation. "smooth and orderly conduct “ of election would have required issuance of necessary directions and instr­uctions by the Commission. But, as in the present case, Akramazamman had withdrawn his candidature altogether from the constituency in question, the respondent alone was left in claim­ing the symbol of the Indian National Congress. Non-allotment of symbol of this party to him could not have disturbed "the smooth and orderly conduct'' of the election. 82. It deserves to be pointed out that for invoking power under this sub-para satisfaction of both the requirements of "smooth'' and ''orderly' conduct of the election is necessary, In this context "smooth'' would mean "free from perceptible pro­jections, equable unruffled free from impediment" (see, Concise Oxford Dictionary); or "easy, regular: unobstructed" (vide, Chambers Twentieth Century Dictionary); or "free from interruptions, irregularities, obstacles, difficulties etc.'' (Webster New 20th Century Dictionary). What obstacle, impediment, interru­ption, or difficulty could have been caused in the conduct of the election if the respondent would not have been given the sym­bol of Hand ? What obstacle, impediment, interru­ption, or difficulty could have been caused in the conduct of the election if the respondent would not have been given the sym­bol of Hand ? So far as orderliness in the conduct of the elec­tion is concerned, I would say that as "orderly" means in this connection, "regular, well-regulated” (Chambers 20th Century Dictionary): "regular, not unruly''(Concise Oxford Dictionary); or "methodical, regular, in order, well-arranged” (Webster's 2th Century Dictionary), it could not reasonably be thought that unless the symbol of Hand was given to the respondent, the same would have affected the regularity in the conduct of the election, or that its denial would have made the election unruly or non-methodical. Let it be said that the smoothness and order­liness, of which para 18(c) speaks, must be related to the conduct of the election; and from the records before me I am not con­vinced if a view could have been reasonably entertained that the holding of election would have been in any way irregular or interrupted, and unregulated or unruly because of the non-allot­ment of the symbol of Hand to the respondent. I would be candid in saying that I have construed the power given by para 18 rather strictly so that the residuary power of this nature is invoked only when recourse to the same becomes absolutely nece­ssary; any other view would cause unnecessary ripples in the slow and steady flow of the provisions of law known or made known to the candidates in advance. I would also like to state in this connection that non-appearance of the Commission in the case, despite specific challenge to the jurisdiction and power of the Secretary of the Commission in issuing Exhibit-7, has made my task rather difficult, as I have been left with no alternative but to express my views on this important issue on the basis of the submissions made before me and on perusal of the records available to me. 83. The natural corollary of this rending is that by allotting the symbol of Hand to the respondent, the provision of the Symbols Order had not been duly complied with, which would attract the mischief of sub-clause (iv) of clause (d) of section 100(1) of the Act. 83. The natural corollary of this rending is that by allotting the symbol of Hand to the respondent, the provision of the Symbols Order had not been duly complied with, which would attract the mischief of sub-clause (iv) of clause (d) of section 100(1) of the Act. Despite this non-compliance, the election of the respondent cannot be declared void, unless the present was a case where the result in so far as it concerned the returned candidate was materially affected due to this non-compliance. 84. Material affect on the result of the election : The averment of the petitioner in this regard finds place in para 21 of the petition wherein it has been stated that as the respondent "is an unpopular man of the Constituency", had not done any development work in the constituency, and had no "grass root to the people of the constituency", he had absolutely no chance of being elected as against the petitioner who was the "standing MLA" and had done lot of development works in the constituency. According to the statement in this para, the elec­tors did not vote for the persona) consideration of the respondent, but had voted for the symbol of Hand which was the party symbol of the Congress particularly after the Prime Minister himself had made an election campaign throughout the Garo Hills District. 85. There is no dispute that the burden of establishing that the result of the returned candidate was materially affected also lies on the petitioner. Shri Mahanta, however, argues that an impossible burden may not be laid on the petitioner in this regard. He strongly relies, to convince me that the allotment of symbol of Hand had materially affected the result of the retur­ned candidate, on the recent decision of the Supreme Court in Chhedi Ram vs. Jhilmil Ram, AIR 1984 SC136, wherein it was stated that the answer to the question with which we are seized must depend on "the facts circumstances and reasonable proba­bilities of the case". The statement of law that if "having re­gard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not lay down impossi­ble standards of proof, is also pressed into service in this regard. 86. The statement of law that if "having re­gard to the facts and circumstances of a case, the reasonable probability is all one way, a court must not lay down impossi­ble standards of proof, is also pressed into service in this regard. 86. Relying on the aforesaid enunciation of law, it is urged by Shri Mahanta that the rigour of standard of proof as laid down in Vashist Narain ( AIR 1954 SC 513 ) in this connection must be held to have been watered down to a considerable extent by Chhedi Ram (supra). It is submitted that the burden of the petitioner in this regard would stand discharged if "reasonable probabilities '' of the case were to support the contention of the petitioner; in other words, Chhedi Ram leaves room to decide this aspect of this case, as per the learned counsel on a “reasonable judicial guess " which was discarded in S. N. Balakrishna vs. George Fernandez, AIR 1969 SC 1201 . 87. A perusal of the judgment in Chhedi Ram shows that the Court had really not laid down any principle different from that which was held applicable in Vashist Narain or George Fernandez. This is apparent from the fact that after quoting certain passages from Vashist Narain wherein it was stated, in­ter alia, that it will not do merely to say that all or a majo­rity of the wasted votes might have gone to the next highest candidate, but the same was required to be established by the petitioner by adducing satisfactory evidence the Bench deciding Chhedi Ram stated in para 4 that it also agreed with the observa­tions "in the context of the facts of that case”. The broad fact of that case, in the context of which the observations noted in Chhedi Ram were made, was that the difference between the number of votes secured by the successful candidate and the number of votes secured by the candidate who got the next largest number of votes was "very nearly the same as the number of votes secured by the candidate whose nomination was improperly accepted", i.e., the wasted votes were very near the difference of votes between the two concerned candidates. According to Chhedi Ram, the proposition of law stated in Washist Narain will not apply "whatever the number of wasted votes and whatever the margin of difference between the num­ber of votes secured by the successful candidate and the number of votes secured the next highest candidate ". 88. In so far as the George Fernandez's case is concerned, it was stated in para 5 of Chhedi Ram that the observation in that case that there was no room for " a reasonable judicial guess ", or that the provision of law in this regard has pres­cribed " an impossible burden " has to be understood in the light of the fact that in George Fernandez's the margin of the votes was not small, which aspect was specifically highlighted by the Bench deciding Chhedi Ram by underlining the observation rel­ating to the margin of votes being not small, in the para quoted from George Fernandez' case. This indicated, according to the decision in Chhedi Ram, that where the differences between the num­ber of votes secured by the successful candidate and the number of votes secured by the next highest candidate is marginal, " it may be possible in the circumstances of the case to hold that the burden has been discharged ''. 89. Relying on the small margin by which the respondent had won in the present case, the same being 558, it was submi­tted by Shri Mahanta that there are certain circumstances on the basis of which it could reasonably be said that the respondent had won because of the allotment of the symbol of Hand to him. In trying to establish this submission, Shri Mahanta urged that the small margin of victory in the present case might be due to the Congress-Wave which prevailed in 1983, which is apparent from the fact that out of 15 Assembly seats for the West Garo Hills District, the Congress had won as many as 11 seats in 1983, whereas in the Assembly election of 1978, the Congress was able to capture only five seats as would appear from "Meghalaya Election Hand Book'' of 1978 and 1983 brought out by the Chief Electoral Officer, Meghaiaya. This does show that the Congress Party had improved its position quite a lot in 1983 Assembly election. This does show that the Congress Party had improved its position quite a lot in 1983 Assembly election. But then, it cannot be forgotten that in the election of 1978, when there was anti-Congress wave, as admitted by the petitioner himself as PW 2, the respondent had secured as many as 2877 votes as against 2896 by the petitioner - the difference being thus of 19 votes only. It may be pointed out that in that election also, the respondent was a candidate of Congress, and though the petitioner was an independent candidate, he had been backed, as per the respondent by the Janata Party which was in power at the Centre by 1978. Though, this latter statement has been de­nied by the petitioner, according to whom, Janata Party had not been organised in Meghalaya in 1978; but when the petitioner was asked whether Zehirul Islam, who was a Minister in the Janata Government of Assam for sometime had canvassed for him, his reply was that he did not remember. 90. If this background is remembered, and it is noted that the respondent had secured only 252 votes more in the 1983 ele­ction (2877+252=3129) there is some discrepancy in the total num­ber of valid votes polled by the respondent, as this figure has been given as 3126 in the petition, whereas the Handbook mo­tions 3129), as compared to his performance in 1978, whereas the increase in the total number of valid votes was of more than 2000-from 8256 in 1978 to 10,302 in 1983 (as appears from the aforesaid Election Hand Books), it cannot be said that the inc­rease was only due to the allotment of symbol of Hand to the respondent. On top of it, if the statement of the petitioner biro-self that if "Akramuzzaman would have remained as a Congress candidate, then also, I would have won the election'' is remem­bered, the contention that the respondent had won because of allotment of the symbol of Hand to him cannot really be accep­ted; as what mattered was not the label, but the metal; not the mantle but the mettle. 91. Before the evidence led in the case on this aspect is further analysed, it would be worthwhile to note as to what had really been held in Chhedi Ram. 91. Before the evidence led in the case on this aspect is further analysed, it would be worthwhile to note as to what had really been held in Chhedi Ram. Though this case has lessened the rigour of proof relating to material affect on the result of the election, it" may be remembered that the Court had held the Burden in this regard to have been discharged by the petitioner, Because the number of wasted votes (polled by the candidate whose nomination papers had been improperly accepted) was known; and on the basis of this known fact the Court held that the two tests : (1) the number of wasted votes (6710 in the case) being disproportionately large as compared with the difference between the votes secured by the successful candidate and the candidate who secured the next highest number of votes - this being 373 only and (2) the wasted votes bearing a fairly high proportion to the votes secured by the successful candidate (17822 in the case) were satisfied; and so the Court took the view that there was reasonable probability that the result of the election had been materially affected and one could venture to hold the fact as proved. In the case at hand the number of wasted votes is not known. The ratio of Chhedi Ram cannot be applied merely because the margin of victory here was of 558 votes, whereas in Chhedi Ram it was of 373 votes. The two crucial tests laid down in Chhedi Ram are not amenable of application to the facts of the present case (as the number of wasted votes is not I known); and so this decision cannot assist the petitioner. 92. Coming to the evidence led by the petitioner, let it be first seen as to what he has to say in this regard. As per his statement, because of the allotment of the symbol of Hand, he was taken as liar by many persons, as he bad told them even on 25th January that the respondent was an independent candidate. The petitioner also deposed about campaign by late Smt. Indira Gandhi. As per his statement, because of the allotment of the symbol of Hand, he was taken as liar by many persons, as he bad told them even on 25th January that the respondent was an independent candidate. The petitioner also deposed about campaign by late Smt. Indira Gandhi. Of the 'many persons" mentioned by the petitioner, be could produce only PW 8 whose evidence is that the petitioner had told in a big election meeting that "if the symbol of Hand was allotted to the respondent No. 1, we may not vote for the petitioner". Of the remaining witnesses of the petitioner, PWs 5 and 7 stated that being members of the mi­nority community they, and many others like them, voted for the respondent as he was a candidate of the Ruling Party, because they were afraid that if they would not support the Congress, they would be served with "Quit India " notices. As to this reason, let it be first said that there is not even a whisper about it in the pleading, and secondly, if that was the real reason for supporting the respondent, he would not have polled 2877 voles in 1978, as a Congress candidate because the Ruling Party at the Centre was then Janata Party. PWs 9, 11, 12 and 13 have assigned no reason as to why the respondent won because of the allotment of the symbol of Hand to him. PWs 4 and 15 have spoken about adverse affect due to confinement of the peti­tioner in the house of the former, who also stated about win­ning of votes by the respondent by taking recourse to bribery. PWs 6, 10 and 12 too disposed about money power. Let it be said that apart from the petitioner, none of his witnesses speci­fically stated about the visit of the late Prime Minister as having influenced the voting in favour of the respondent, which was assigned as one of the reasons in the petition. 93. This being the state of evidence on this aspect of the case, it has become difficult to know for definite as to what reason (s) had prevailed with the voters in supporting the respon­dent - the casting of votes being deprecate upon a variety of factors. 93. This being the state of evidence on this aspect of the case, it has become difficult to know for definite as to what reason (s) had prevailed with the voters in supporting the respon­dent - the casting of votes being deprecate upon a variety of factors. It would be hazardous, on the basis of vague, varied and vacillating evidence on record on the question under examination, to say even by the yardstick of " reasonable judicial guess" that the difference of 558 votes would have been wiped out if symbol of Hand had not been allotted to the respondent, when it is also noted that (1) some of the witnesses of the respondent have come forward to say that they had voted for the respondent not beca­use of his being a Congress candidate, but because of his perso­nal qualities; (ii) the petitioner himself stated that if Akramuzzaman had remained as a Congress candidate, because of which the latter would have been allotted the symbol of Hand, the former would have won the election; and (3) in 1978 the res­pondent had lost only be a margin of 19 votes when there was anti-Congress wave. 94. Because of what has been stated above, it cannot be held even on the basis of "reasonable probability” that the respondent had won because of the allotment of symbol of Hand to him. The non-compliance with the Symbols Order, of which mention has been made above, cannot, therefore, be held to have materially affected the result of the returned can­didate's election. 95. The aforesaid discussion answers the various sub-issues under Issue No. 1 and 1A as below : - Issue No. 1 (a) Yes; it was in breach of the Symbols Order. (b) Declaration for the symbol of Hand was not made; one-the-less, the nomination paper of the respon­dent was not liable to be rejected. (c) No. (d) Yes. (e) The Secretary to the Election Commission had sent a message as described in this sub-issue and the same could be treated as a direction of the Election Commission, but the same was not valid in the eye of law. (f) No. Issue No. 1A : Though there was non compliance with the Symbols Order, the same did not materially affect the result of the elections in so far as it concerned the respondent. 97. (f) No. Issue No. 1A : Though there was non compliance with the Symbols Order, the same did not materially affect the result of the elections in so far as it concerned the respondent. 97. Issue No. 8 : - We are at the end of our journey inas­much as what remains to be stated is that because of the afore­said findings the election of the returned candidate cannot be set aside. This issue is, therefore answered against the petitioner. The result is that the petition stands dismissed with cost, which I assess at Rs. 1,000/-. 98. Before parting, I would record my appreciation for the precise and pointed arguments advanced by the learned Counsel of both the sides, and express my regret at the delay in dis­posal of the case after it came to my file, which, however, occurred due to my having been required to go on long leave twice for personal reasons, and commencement of the Long Vaca­tion of this Court from 20th October'85 to restart working from today.